You already know that the Defense of Marriage Act (DOMA), which prohibited recognition of same-sex marriages, was declared unconstitutional.  United States v. Windsor, 133 S.Ct. 2675 (2013)

In states recognizing same-sex marriages, ERISA benefits, like life and disability benefits provided through insurance contracts, will most likely be viewed as covering a same-sex spouse.

But does the same apply to self-funded ERISA plans?  Maybe not.

Here’s the case of Roe and Doe v. Empire Blue Cross Blue Shield and St. Joseph Medical Center, __ F.Supp. 2d __, (S.D.N.Y May 1, 2014).

FACTS: New York recognizes same sex marriages, and Jane Roe and Jane Doe were married. St. Joseph Medical Center’s health plan for employees is self-insured and states: “Same sex spouses and domestic partners are NOT covered under this plan.” Roe sought to add Doe to the plan, which was rejected. Plaintiffs sued claiming defendants violated Section 510 of ERISA entitled “Interference with protected rights.”

ISSUE: Whether ERISA prohibits a private employer from excluding same-sex spouses?


  1. “ERISA…is not a dictator of plan terms.” Op. at 10.
  2. ERISA does not contain an anti-discrimination provision “because other federal laws already proscribed such discrimination.” Op. at 10.
  3. An ERISA plan “may, for example, choose not to provide benefits to spouses at all.”  Op. at 11.
  4. The clear import of United States v. Windsor [133 S.Ct. 2675 (2013)] is a shift in federal policy toward enforcing state laws that recognize same sex marriage.  Op. at 13.
  5. The exclusion [‘Same sex spouses and domestic partners are NOT covered under this plan.’] does not violate Section 510 of ERISA as it is currently promulgated.” Op. at 14 (Emph. added).

NOTE:  Look for self-funded plans, containing an exclusion against same-sex spouses,  to rely on this case.  Plans with that exclusion will argue that ERISA does not require employers to cover same-sex spouses under the plan.